Toronto, Ontario, March 8, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
(a.k.a. Visagini Arulnothaya Rajakuma)
ANUSANTH VISAGINI
(a.k.a. Visakini Anusanth)
ANUSIA ARULNOTHAYARAJAKUMAR
(a.k.a. Anusia Arulnothaya Rajakuma)
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The principal applicant, Visagini Arulnothyarajakumar, is the mother of the other two minor applicants. The children's claims are dependant on that of their mother. The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that the applicants are not Convention refugees or persons in need of protection. This is an application for judicial review of that decision.
[2] Despite the articulate submissions of the applicants' counsel, I have not been persuaded that there is any error in the board's decision.
[3] The principal applicant (whom for ease of reference I will refer to as the applicant) is a citizen of Sri Lanka. Although the children were born in England and Germanyrespectively, they have no status in those countries. Therefore, all three claims were assessed in relation to Sri Lanka. The applicant claims that her fear of persecution arises from her father's activity with the Tamil United Liberation Front (TULF). Her father left Sri Lanka, at the demand of the Liberation Tigers of Tamil Eelam (LTTE) in 1990, leaving his wife and children in Sri Lanka. He died in June 2002.
[4] The applicant's mother (now also deceased) sent three of the applicant's siblings (two sisters and one brother) to other countries in the 1990s. The applicant left Sri Lankain 1995 and another of her brothers came to Canada in 1998. All fled Sri Lankafearing forcible recruitment by the LTTE. The applicant has three sisters in Sri Lanka, two of whom are married.
[5] In her personal information form (PIF), the applicant claimed that the LTTE had attempted to recruit her, but she defied them and escaped. She additionally stated that she was arrested and detained for one week by the police, while in Colombo, because she was a Jaffna Tamil (perceived by the authorities to be a LTTE supporter).
[6] After leaving Sri Lanka, the applicant lived in Germany, England and then Germany again. She applied for refugee status in both countries but was denied by both (twice in Germany).
[7] The RPD found that there was insufficient credible evidence to determine whether the applicant and her children are Convention refugees or persons in need of protection. The board did not find the applicant fully credible in terms of her fear of returning to Sri Lanka. It also found that her evidence was vague. The RPD determined that the applicant was similarly situated to her eldest sister who had avoided the LTTE because she was married with small children. There was no evidence before the board indicating that mothers with young children are being recruited by the LTTE, especially in Colombo. Although it noted that the peace accord in Sri Lanka is tenuous and that the country needs to recover after the tsunami, there is no evidence that the applicants face a serious risk of persecution.
[8] Although the applicants submitted a number of arguments in the written materials, counsel withdrew a number of them at the hearing. The arguments that were maintained are:
(a) In relation to the finding that the applicant was similarly situated to her sister, the RPD allegedly erred in failing to appreciate that the sister was afraid and wanted to leave Sri Lanka.
(b) In relation to Colombo, the board is said to have erred in failing to address a material aspect of the applicant's claim, that is, she was afraid to go to Colombo, in part, because she had previously been arrested and detained by the police.
[9] When regard is had to the transcript of the hearing and the reasons of the board, those arguments cannot be sustained. The RPD, at the outset of the hearing, was particularly careful to explain that it had been a long time since the applicant had lived in Sri Lanka (10 years) and that changes had occurred. Because the exercise of determining refugee (or protected person) status is a forward-looking one, it was important that the applicant address the fears that she had with respect to returning to Sri Lanka. The board identified the relevant issues.
[10] The transcript reveals that the RPD was sympathetic, gentle, and patient with the applicant. Throughout, it persistently attempted to elicit specific information from the applicant and was met with generalized responses. In the end, the RPD was left with very little, in the way of evidence, to analyse. In my view, the board did a remarkable job, given what it had to work with.
[11] Insofar as the allegations of error are concerned, the fear expressed by the applicant's sister related to a fear of what would happen if the peace accord did not hold. Despite being prodded for further information, the applicant provided none. In relation to her reasons for not wanting to return to Colombo, it is correct that the applicant had been previously arrested and detained. However, the reason she gave for not wanting to go there was the LTTE, not the authorities.
[12] In the circumstances, as they existed, there was little else that the board could have done. There was indeed insufficient evidence to support the claim because there was, for all intents and purposes, no evidence of prospective fear to ground a positive determination. Thus, the application for judicial review must fail.
[13] Counsel did not suggest a question for certification nor does one arise.
ORDER
THIS COURT ORDERS THAT this application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2832-05
STYLE OF CAUSE: VISAGINI ARULNOTHYARAJAKUMAR
(a.k.a. Visagini Arulnothaya Rajakuma)
ANUSANTH VISAGINI (a.k.a. Visakini Anusanth)
ANUSIA ARULNOTHAYARAJAKUMAR
(a.k.a. Anusia Arulnothaya Rajakuma)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 7, 2006
AND ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
| Micheal Crane
|
|
| Marina Stefanovic |
SOLICITORS OF RECORD:
| Micheal Crane Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |
|